FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : A PUBLIC SERVICE EMPLOYER - AND - A WORKER DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2011.
BACKGROUND:
2. The Employer appealed the Decision of the Equality Officer to the Labour Court on the 10th September, 2013. A Labour Court hearing took place on the 23rd January, 2014.
The following is the Court's Determination:-
DETERMINATION:
This is an appeal by a Public Service employer against the Decision of the Equality Tribunal in a claim by the Worker that she was discriminated against by the Respondent on the disability ground. The claim was made pursuant to the Employment Equality Acts 1998-2011 (the Act).
In this Determination the Worker is referred to as the Complainant and the Public Service employer is referred to as the Respondent.
Background
The Complainant commenced employment with the Respondent in 2001 as a Medical Secretary. She was located in a hospital under the control of the Respondent. There are two aspects to her claim of discrimination. Firstly, it is contended that the Complainant was discriminated against in not being provided with a suitable place of work having regard to her disability. In advancing that aspect of the claim it is contended that the Respondent breached it's duty to provide the Complainant with reasonable measures to accommodate her disability. The Complainant contends that by reason of the foregoing she was prevented from continuing in her employment with the Respondent.
The second limb of the claim is that the Respondent advertised a competition to upgrade the type of posts in which she was employed. The Complainant applied for upgrading. She was placed at number 51 on a panel. According to the Complainant the first fifty candidates on this panel were appointed to an upgraded post but she was not upgraded.
This complaint was referred to the Equality Tribunal on 10thSeptember 2009. It was heard by an Equality Officer on 19thJune 2011 and on 21stJune 2012. In a Decision dated 13thJuly 2013 the Equality Officer found for the Complainant. She awarded her compensation in the amount of €70,000. The Equality Officer also made an ancillary order directing the type and location of office accommodation with which the Complainant should be provided and the duties to which should be assigned.
It is against that Decision that the Respondent now appeals.
Facts
The material facts as admitted or as found by the Court are as follows:
The Complainant suffers from a medical condition that requires her to visit the toilet frequently. She worked with one other person in an office which was adjacent to a toilet. The Respondent decided to relocate the Complainant and all of her colleagues to another part of the hospital. The Complainant found this location unsuitable because of its distance from a toilet and in that it necessitated sharing an office with others.
The other Secretaries transferred to the new location in or about October 2006. The Complainant’s then manager did not require her to move. This arose in circumstances where the Complainant provided her then manager with a report on her condition and the manager appeared to accept that the Complainant should not be relocated at that time. The manager in question was not called to give evidence. The Complainant remained working in the original office on her own until July 2007. She was then instructed by a different manager to relocate to the multi-person office occupied by the other Secretaries.
Faced with the Respondent’s insistence that she move to the new location the Complainant went on sick leave in July 2007. While she returned to work for short periods in the interim, the Complainant has remained on sick leave since then.
In July 2007 the Complainant’s doctor provided the Respondent with a report on her medical condition The doctor gave it as her opinion that the Complainant could return to work if she was provided with a room on her own adjacent to a toilet. The Respondent referred the Complainant to an occupational health physician. That doctor concurred with the opinion provided by the Complainant’s doctor on the need to provide the Complainant with unshared accommodation close to a toilet.
It is accepted that the Complainant’s condition is a disability within the statutory meaning.
The Complainant’s trade union (IMPACT) became involved in trying to resolve the problems faced by the Complainant. In 2008 the Complainant was offered a position in the reception area of the hospital which she considered unsuitable because it involved contact with the public. She was then offered a post in the accident and emergency department which she again found unsuitable for the same reason. Both of these positions involved working during what was described as ‘out of hours’. While these offers were referred to in the Respondent’s written submission to the Court no evidence was tendered on the basis upon which they were regarded as meeting the Complainant’s needs. It any event, the Respondent continued to engage with IMPACT on the matter. It appears that in the course of this process the Complainant indicated her willingness to transfer to another position if she could be provided with suitable accommodation.
While this aspect of the dispute was continuing, the Respondent concluded an agreement with IMPACT, in October 2008, whereby a number of upgraded medical secretary posts would be created. It appears that 59 posts were to be upgraded in accordance with the agreement. A merit based panel was created from which these positions would be filled. In or about March 2009 the first 50 on the panel were upgraded in the posts that they then occupied. The Complainant, who had been ranked number 51 on the panel, was not upgraded. In its written submission the Respondent contended that the failure to upgrade the number originally envisaged was due the imposition of an embargo on promotion and upgrading introduced in the Public Service at that time. However, no evidence was adduced on the circumstances in which the appointments above number 50 on the panel were withheld. The Complainant contends that the person who was placed no 54 was in fact appointed at that time.
For reasons that were not explained to the Court, the dispute was eventually escalated to the General Secretary of IMPACT and the Deputy Director of Human Resources of the Respondent. As a result of discussions at that level the Complainant was appointed to an upgraded post in primary care with effect from 7thDecember 2009. The Court is satisfied on the evidence that in the course of discussions leading to this appointment IMPACT was acting with the Complainant’s authority and that she accepted the position offered subject to suitable office accommodation being provided.
The Court heard evidence from Ms M who was then manager of a primary care unit which the Respondent was in the process of establishing. This witness is now manager of the hospital in which the Complainant originally worked. Ms M told the Court that she was pleased to obtain the services of the Complainant as she needed a secretary to support the primary care teams. She told the Court that she met with the Complainant in May 2010 and told her that she would be located in a health centre. She accompanied the Complainant on a visit to the centre and showed her the facilities in which she would work. According to Ms M the Complainant was to be assigned very similar work to that undertaken by her while working in the hospital.
Ms M told the Court that the Complainant asked that certain alterations be made to the layout of the centre. She arranged to have the necessary work undertaken before the Complainant commenced her assignment. That involved, amongst other things, rearranging the staff and the public toilets so that the staff facilities would be adjacent to where the Complainant was to be located. The Complainant commenced working in this location in June 2010. In July 2010 Ms M learned that the Complainant had again gone on sick leave. She met with the Complainant who informed her that she had a problem in dealing with the public. According to Ms M, the public attended the centre on one day per week and she arranged for the Complainant to work elsewhere on that day. She also told the Complainant that she should contact the Respondent’s disability support office and discuss her difficulties with them. It appears that the Complainant did not follow that advice.
Ms M told the Court that while the Complainant was located in the reception area she was not required to undertake reception work. In order to resolve the matter Ms M offered the Complainant a similar position in another town. This centre was located nearer to the Complainant’s home. This too was declined.
The Complainant was on sick leave due to an unrelated matter until March 2011. At that point Ms N, who was the Respondent’s director of human resources for the service to which the Complainant had been assigned, became involved. Ms N met with the Complainant’s trade union official in seeking to resolve the matter. She told the Court in evidence that a number of alternative assignments were identified and offered to the Complainant. According to this witness all of these assignments met the requirements previously identified by the Complainant’s doctor and the occupational health physician. One of the posts offered was as secretary to a consultant in the mental health service. The Complainant accepted this assignment and worked in that position for a period of some nine weeks. She again went on sick leave contending that the office accommodation did not meet her needs. The Complainant was then offered a post in another hospital under the control of the Respondent which the Complainant rejected because of its distance from her home. This hospital is located some 1.5 km further from the Complainant’s home than the hospital in which she originally worked.
In her evidence to the Court the Complainant gave the various reasons for rejecting the offers of alternative employment made by the Respondent. In relation to the first offers of reception work and work in the accident and emergency department she said that her condition required her to visit the toilet frequently and without notice. This, she said, made it impossible for her to work in a position that involved dealing with the public. In relation to the post in primary care that she took up in June 2010, the Complainant told the Court that the toilet was only accessible with a key and the time spent obtaining the key rendered it unsuitable. The Complainant accepted that the key was beside her desk. She said that this posting involved dealing with the public and for the reasons already stated this was not possible because of her condition. The alternative to dealing with the public involved travelling to a second location and this too made it impossible for her to continue in the post.
In relation to the other offers made, the Complainant told the Court that they involved either lifting files, dealing with the public, travelling between different locations, climbing stairs or driving longer distances to work. Her evidence was that on medical advice she could not undertake such work and that her doctor had advised the Respondent accordingly. The Complainant accepted that the General Secretary of her trade union had kept her fully informed of his discussions with the Respondent on her behalf and that the revised contract in respect to the primary care assignment was issued with her agreement.
In dealing with the aspect of her claim relating to upgrading, the Complainant said that she understood that the first 59 successful candidates would be given new contracts in their existing posts. She said that the person who was 54 on the panel was upgraded in March 2009. She and the remaining successful candidates were upgraded in December 2009 but she was the only one who was not appointed to her original job.
This Limits
The Respondent contends that the within claim was presented to the Equality Tribunal outside the time limit specified at s.77(5) of the Act. That section provides that a claim must be presented within six months of the date of the discrimination complained of or where the discrimination is continuing, the date of the last occurrence. Counsel for the Complainant submitted that what is in issue in this case is continuing discrimination arising from the Respondent’s failure to provide the Complainant with an appropriate place of work. It was submitted that the discrimination subsisted up to and beyond the date on which the within complaint was presented.
There are two provision of the Act which are relevant in considering this question. Section 77(5)(a) of the Acts provides: -
- (a) Subject to paragraph (b) , a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.
Section 77(6A) provides: -
For the purposes of this section —
- (a) discrimination or victimisation occurs—
- (i) if the act constituting it extends over a period, at the end of the period,
- (iii) [not relevant]
The circumstances in which these provisions are applicable were extensively considered by this Court in Determination EDA1124Ann Hurley v County Cork VEC.As was pointed out in that case, subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination. Under subsection (6A), an act will be regarded as extending over a period, and so treated as having been done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant (Barclays Bank plc v KapurIRLR 387).
This subsection would apply where, for example, an employer maintains a discriminatory requirement for access to employment or promotion. In such a case the time limit will only run from the time that the policy or practice is discontinued. Hence, an aggrieved party could maintain a claim in respect of acts or omissions which occurred in pursuance of the policy or practice regardless of when the act or omission occurred.
The decision of the Court of Appeal for England and Wales inRobertson v Bexley Community Centre[2003] IRLR 434, concerned a similarly worded provision of UK legislation to section 77(5)(a) of the Act. This case is authority for the proposition that the Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of a regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum. However the decision Court of Appeal for England and Wales, inArthur v London Eastern Railway Ltd[2007] IRLR 58, which was followed by this Court inAnn Hurley v County Cork VEC, indicates that in order to take into account acts of discrimination outside the time limit there must be a finding that a related act of discrimination occurred within the time limit.
The decision of the Court of Appeal for England and Wales inCast v Croydon College[1998] IRLR 318 is also of assistance in considering the issues arising in the instant case. Here it was held that the mere fact that an act or omission has continuing consequences does not make it a continuing act for the purpose of applying a time limit. The case is also authority for the proposition that where an original decision is reviewed and a decision taken based on new considerations a fresh cause of action can accrue. The Court of Appeal quoted with approval the earlier decision of the EAT, per Mummery J (as he then was), inOwusu v London Fire & Civil Defence Authority[1995] IRLR 574, as follows: -
- The position is that an act does not extend over a period simply because the doing of the act has continuing consequences. A specific decision not to upgrade may be a specific act with continuing consequences. The continuing consequences do not make it a continuing act. On the other hand, an act does extend over a period of time if it takes the form of some policy, rule or practice, in accordance with which decisions are taken from time to time. What is continuing is alleged in this case to be a practice which results in consistent decisions discriminatory of Mr Owusu.
Later the Court held: -
- Accordingly, it seems to me that the industrial tribunal, having found that the college reconsidered and looked at the matter again in 1993, erred in law in failing to consider the implications of that finding for the purpose of the running of time. It is true that the best that Mrs Cast could have achieved on this approach was a determination that the final refusal occurred on 10 May 1993. That was still outside the three-month time limit, but only by three days, a trivial over-run when compared with that of thirteen-and-a-half months if the refusal on 26 March 1992 were the only potential act of discrimination, and thus material to the exercise by the tribunal of its discretion whether to extend the time limit.
The decision to require the Complainant to relocate was implemented in July 2007. If that was the discrimination complained of the claim was clearly out of time when it was presented in September 2009. However, the gravamen of the Complainant’s case is that the Respondent failed to provide her with a place of work that adequately took account of her disability. That involves a claim that the Respondent failed to fulfil its statutory duty to provide her with reasonable accommodation for her disability. The nature and extent of that duty will be considered later in this Determination. However, the Court is satisfied that for as long as the Complainant remained in the Respondent’s employment that duty subsisted. It appears to the Court that a failure to fulfil that duty amounted to the keeping in force of a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant.
It is also clear from the evidence that the Respondent continued to review the decision on where to locate the Complainant over an extended period. On the authority ofCast v Croydon Collegethat could also prevent time from running against the Complainant in relation to the original decision.
Having regard to these considerations the Court is satisfied that the within claim was within time when it was presented to the Equality Tribunal on 10thSeptember 2010.
Discussion
There is an absence of clarity on the circumstances in which the Complainant came to be moved from the office that she originally occupied in the hospital. In its written submission the Respondent told the Court that it was to accommodate a pressing clinical need or for teaching purposes. However evidence was not adduced from any person involved in making that decision nor was there any evidence to indicate what imperative necessitated the move at the time it was implemented. There is no dispute as to the fact that the Complainant is a person with a disability. Nor can there be any dispute on what was required to accommodate her disability. Both her doctor and the occupational health physician were agreed on that question. No explanation was given as to why the Complainant could not have continued to occupy the room in which she worked after her colleagues had moved in October 2006 while the quest for a suitable alternative continued.
It is clear that the decision to relocate the Complainant was not because of her disability. It was plainly to meet some exigency of the Respondent. She was treated no differently from others who were similarly required to relocate. But that is not the end of the matter. InCampbell Catering v Raseq[2005] 15 ELR 310, this Court pointed out that discrimination can arise where similar situations are treated differently and where different situations are treated similarly. The Complainant was in a different situation to that of her colleagues who were moved in that they could work in the new location and she could not. It is also clear that in order to continue in employment the Complainant needed special arrangements in relation to the facilities available to her during the course of her employment.
The nature and extent of an employer’s duty to provide a disabled employee with reasonable accommodation has been considered by this Court on a number of occasions. In Determination EDA0413-An Employer v a Worker[2004] ELR 159 the Court pointed out: -
- The provision of special treatment or facilities is not an end in itself. It is a means to an end and that end is achieved when the person with a disability is placed in a position where they can have access to, or as the case may be, participate in, or advance in employment or to undergo training. This can involve affording the person with a disability more favourable treatment than would be accorded to an employee without a disability.
In this case the Complainant was absent from work not because of her disabilityper se. Rather it was because, she contends, the Respondent had failed to provide her with working conditions that allowed her to continue working. In that context this case can more properly be seen as turning on the Court’s conclusions as to the extent to which the Respondent fulfilled its duty to provide the Complainant with reasonable accommodation for her disability. That involves an object test and an employer’s duty is fulfilled where the measures taken have the effect of allowing the disabled person to continue in employment on the same terms as others.
The only evidence tendered on behalf of the Respondent was that given by Ms M and by Ms H. Their involvement commenced after this complaint was presented to the Equality Tribunal. In the Court’s view both Ms M and Ms N did all that was reasonably open to them to accommodate the Complainant. They consulted with the Complainant and her trade union on what was required and they responded to any requests that she made. In many respects their response was a model of how an employer should respond in the type of situation with which they were presented.
At the time Ms M became involved the Complainant had agreed through her trade union to relocate to the primary care unit which was then in the process of being established. Ms M met with the Complainant and discussed her needs. She brought her to the premises in which she was to be located. The Complainant asked to have certain adjustments made to the layout of the premises. Ms M arranged to have the necessary work undertaken before the Complainant commenced working there. When the Complainant expressed unease in dealing with the public, arrangements were made to avoid her having to do so. It seems to the Court that had any other difficulties presented themselves Ms M would have been equally accommodating.
The Court is convinced that, when viewed objectively, the accommodation provided to the Complainant at the health center to which she was assigned met all of her identified needs and fulfilled the Respondent’s duty to provide her with reasonable accommodation. Nevertheless, the Respondent, through Ms N, continued to identify alternative places of work which met the Complainant’s requirements. She did so in conjunction with the Complainant’s trade union. However, the Complainant rejected all of them. Having considered all of the evidence the Court believes that the Complainant had no justifiable grounds for so doing.
It is appreciated that the Complainant wished to return to the hospital where she previously worked and to occupy the same office as before or some similar single occupancy room. But she had agreed through her trade union that her needs could best be addressed by relocating to the primary care unit and it was not reasonable or open to her to resile from that agreement.
Consequently, the Court must hold that from at least June 2010 the Respondent fulfilled its duty to provide the Complainant with reasonable accommodation and did not discriminate against her thereafter. That does not, however, deal with the situation that pertained between July 2007 and that date. There is no discernable reason why the Complainant could not have been left in the office that she then occupied until a suitable alternative was found. While reference was made to an offer of alternative work within the hospital having been made in 2008, neither of the witnesses who gave evidence on behalf of the Respondent had any first hand involvement in making this offer nor was evidence adduced from any of those who were involved. According to the Complainant this offer did not accord with her needs and in the absence of any rebutting evidence of similar weight the Court must accept what she said.
There was no evidence proffered by the Respondent as to what if anything was done to accommodate the Complainant’s needs until the matter was taken up at national level by the General Secretary of her union and the Deputy Director of Human Resources of the Respondent. In the interim the Complainant was unable to continue in her employment and was required to avail of sick leave. In these circumstances the Court finds that the Complainant failed to provide the Complainant with a suitable place of work having regard to her disability between July 2007 and June 2010 and thereby discriminated against her on ground of her disability between those dates.
Failure to Upgrade the Complainant
The second limb of the Complainant’s claim relates to the filling of upgraded posts in March 2009. The essence of her grievance is that 50 of her colleagues were upgraded at that time and she was not. The Complainant was number 51 on the panel and it was expected that all 59 candidates on the panel would be upgraded. The Complainant contends that the person who was number 54 on the panel was upgraded. The Respondent disputes that this was the case although it did not adduce any evidence on the point. Following intervention by the trade union the remaining candidates on the panel were upgraded in December 2009.
While the Complainant was treated less favorably than the 50 of her colleagues who were upgraded she was treated no differently than all others on the panel who were not upgraded, none of whom had a disability. That suggests that the reason for not upgrading the Complainant was unrelated to her disability. It is well settled that a Complainant must first establish facts from which discrimination can be inferred before an inference of discrimination arises and the onus of proving the contrary shifts to the Respondent. Viewed against the background of at least seven others having been similarly treated the Court does not accept that the failure to upgrade the Complainant in March 2010 is a fact of sufficient significance to raise an inference of discrimination.
In her evidence to the Court the Complainant placed particular emphasis on the fact that all others were upgraded into their own jobs. Her principle complaint is that when she was upgraded in December 2009 it was in a new post in primary care. On or about that time an agreement was reached whereby the Complainant would transfer to the primary care unit and that then became her agreed role. Consequently when the Complainant was upgraded it was in the role that she then occupied. In that respect she was not treated differently than others.
For those reasons the Court holds that the Complainant was not discriminated against in relation to the filling of the upgraded posts.
Conclusion
For the reasons set out herein the Court holds that the Complainant was discriminated against on grounds of disability between July 2007 and June 2010 in respect to her conditions of employment. The Court holds that the Complainant was not discriminated against in relation to access to an upgraded post.
Redress
It is noted that the Equality Officer awarded the Complainant compensation in the amount of €70,000 for the discrimination that was found to have occurred. The Court has differed from the Equality Officer in finding that the Complainant did not suffer discrimination in relation to the filling of an upgraded post. The Equality Officer did not provide any indication as to the apportionment of the award as between the instances of discrimination which she found to have occurred. However, it is clear that the major element of the award was in respect of the failure of the Respondent to provide the Complainant with a suitable place of work.
Having regard to all the circumstances of the case the Court has come to the conclusion that the appropriate award in this case is one of €65,000. In light of the other conclusions that it has reached the Court does not consider that the ancillary order made by the Equality Officer should be upheld.
Accordingly, the Court awards the Complainant compensation for the discrimination which it has found to have occurred in the amount of €65,000. The Court makes no further order.
The Decision of the Equality Tribunal is varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
7th March, 2014______________________
JFChairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.